J. - National Labor Relations Board

100 FOURTH ANNUAL REPORT OF NATIONAL LABOR RELATIONS BOARDWork-relief payments as earnings are properly deductible from theamount of back pay required to make a discriminatorily dischargedemployee whole. The Board has held, however, that to permit theemployer to retain such amounts would place the burden of theemployer's imfair labor practices upon governmental relief agencies,and has therefore required employers, in deducting such amounts, topay them over to the work-relief agency which supplied the fundsfor the project upon which the employee worked.25These rules appear in all Board decisions involving a back payorder in substantially the following form:By "net earnings" is meant earnings less expenses, such as for transportation,room, and board, incurred by an employee in connection with obtaining workand working elsewhere than for the respondent, which would not have been incurredbut for his unlawful discharge and the consequent necessity of his seekingemployment elsewhere. See Matter of Crossett Lumber Company and UnitedBrotherhood of Carpenters and Joiners of America, Lumber and Sawmill WorkersUnion, Local 2590, 8 N. L. R. B. 440. Monies received for work performed uponFederal, State, county, municipal, or other work-relief projects are not deductibleas "net earnings," but, as provided below in the Order, shall be deducted and paidover to the appropriate fiscal agency of the Federal, State, county, municipal, orother government or governments which supplied the funds for said work-relief.-projects.24Since a back pay order is issued in order to effectuate the policies'of the act, and is not a private right, "but in the interest of thepublic," 27 the Board has rejected the contentions that the amount ofdamage done by striking employees to the property of an employershould be computed and set off against the amount of back pay duefrom the employer 28 and that discharged employees are under anobligation to seek work elsewhere and thus mitigate the amount ofback pay to be paid by the employer.25had they continued to work for the respondent and not been forced, by virtue of therespondent's unfair labor practices, to leave their homes. Moreover, many of the saidemployees were forced, by virtue of the respondent's unfair labor practices, to give uprespondent-owned houses, and thereby incurred expenses which they would not haveincurred except for the said unfair labor practices. It is this sort of extra expenseto which reference is to be made in determining the net earnings of the employ,ees.,-.Tothe extent that all such expenses diminished the earnings of the employees whom wehave found were discriminated against during the resp;ctive periods of discrimination,such earnings shall not be deducted in computing the loss of pay the said employees mayhave suffered."25 Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 911-4( N. L. R. B. 219, enforced as modified, Republic Steel Corp. V. N. L. R. B., November 8,1939 (C. C. A. 3). The Board said:"Insofar as the employee receives remuneration for such work upon a relief projectduring periods when he would otherwise have been workin g for the re.Qpordent, it wouldnot seem necessary, in restoring him to the status quo, that he be reimbursed in suchamounts. Nevertheless, to hold that the losses accruing from the respondent's unfairlabor practices must be borne by the government or governments financing the workreliefproject would not effectuate the purposes of the Act."Home-relief payments and unemployment compensation are not deducted at all fromback pay either in the form of net earnings or as amounts to be paid to the governmentalagency which made the payments. Matter of Pennsylvania. Furnace and Iron Con/pangand Lodge No. 1828, International Association of Machinists, 13 N. L. R. B., No. 7, enforced.N. L R. B. v. Pennsylvania Furnance and Iron Co., July 5, 1939 (C. C. A. 3)." The footnote first appeared in this form in Matter of C. G. Conn, Ltd., and MetalPolishers International Union, Local No. 77, 10 N. L. R. B. 498, petition to review filedJanuary 17, 1939 (C. C. A. 7). In some subsequent Board decisions, there have beensome slight but immaterial variations in the footnote.Agwainea, Inc. v. N. L. R. B., 87 F. (2d) 146 (C. C. A. 5) enforcing Matter ofAgwilines, Inc. and International Longshoremen's Association, Local No. 2402, 2 N. L.R. B. 1.28 Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9N. L. R. B. 219, enforced as modified, Republic Steel Corp. v. N. L. R. B.. November 8. 1939(C. C. A. 3). The Board said : "However proper such set-offs or recoupments might bein a controversy between private litigants over private rights, there is no basis for sucha claim in a controversy, such as this, of a public charaeter, where conformance is soughtwith the public policy of the United States, as expressed in a statute, and where thoseto whom the Board has awarded back pay are not private litigants in the Cause.""Matter of Western Felt Works, a corporation and Textile Workers Organizing Committee,Western Felt Local, 10 N. L. R. B. 407, enforced, Western Felt Works v. N. L. R. B.,March 25, 1939 (C. C. A. 7).